Report reveals miscarriage of justice review body contemplated rejecting Andrew Malkinson’s case for a THIRD time

Report reveals miscarriage of justice review body contemplated rejecting Andrew Malkinson’s case for a THIRD time

• DNA evidence cleared Mr Malkinson of rape in 2023 after he spent over 17 years wrongfully imprisoned
• Chris Henley KC levels ‘severe criticism’ at the Criminal Cases Review Commission, finding that the body should have granted Mr Malkinson a fresh appeal as far back as 2009
• Internal documents show that in 2022 the CCRC was contemplating rejecting Mr Malkinson’s case AGAIN despite ‘compelling’ DNA evidence
• Report personally criticises CCRC boss Helen Pitcher for refusing to apologise sooner and presenting its handling of the case as an ‘unqualified success’

Press release and briefing – APPEAL – 18 July 2024

 

An independent review has levelled “severe criticism” at the miscarriage of justice review body over its handling of the case of Andrew Malkinson, who spent over 17 years in prison for a crime he did not commit.

 

A 105-page report by Chris Henley KC, published today, found that the Criminal Cases Review Commission (CCRC) could have spared Mr Malkinson a decade of wrongful imprisonment if it had not “missed” the opportunity to send his case back to the Court of Appeal in 2009, when DNA evidence made clear “he might be innocent”.

 

Mr Malkinson was wrongly convicted of a stranger rape in 2004. His 2009 and 2018 applications to the CCRC were rejected, with the body finally granting him a new appeal in January 2023. In July last year the Court of Appeal overturned Mr Malkinson’s conviction on the basis of DNA evidence implicating another man and police disclosure failings.

 

Mr Malkinson has responded to Mr Henley’s findings by calling for the CCRC to be “completely rebuilt” and its Chair Helen Pitcher, who is personally criticised in the report, to resign or be sacked: “If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.”

 

CCRC ‘missed’ 2009 chance to correct miscarriage of justice

 

Mr Henley’s report found that there was “a complete failure” by the CCRC to “get to grips with the potential significance” of new DNA evidence which it was made aware of in 2009, with the result that the body “missed” the opportunity to put right the miscarriage of justice.

 

The KC criticised the CCRC’s 2012 stance that the DNA breakthrough did not meet the legal test for granting Mr Malkinson a new appeal hearing, writing that the CCRC “accepts that the new DNA evidence means that Mr Malkinson might have been wrongly convicted, that he might be innocent, but nevertheless maintains the position that this does not assist him”.

 

“In my view if the jury had heard that there was unaccounted for male DNA in that specific location on the vest top, that it was not Mr Malkinson’s DNA and that all attempts at elimination had proved unsuccessful this might have made a difference to the jury’s verdict. This is not a difficult conclusion to reach,” Mr Henley added.

 

Mr Henley also criticised the CCRC for failing to uncover disclosure failures – which were so significant the Court of Appeal ruled they provided a separate basis for overturning Mr Malkinson’s conviction – during its first review, stating: “I am in no doubt that the police file should have been obtained”.

 

Mr Malkinson was not released from prison until December 2020 – meaning that if the CCRC had granted his first application in 2009 he could have been spared a decade of wrongful imprisonment.

 

CCRC considered rejecting case again despite ‘compelling’ DNA evidence

 

Case records newly unearthed by Mr Henley show that in 2022 the CCRC was even contemplating rejecting Mr Malkinson’s case for a third time.

 

By that point, Mr Malkinson’s legal team at the charity APPEAL had presented the CCRC with new DNA test results which, in Mr Henley’s words, “provided a compelling basis to conclude that another man was responsible for the brutal attack”.

 

Nevertheless, internal comments by CCRC personnel record them taking the view that it was “likely” these DNA findings “could not form the basis of a referral of the case” to the Court of Appeal, unless the alternative suspect could be identified through a match on the National DNA Database.

 

Mr Henley criticised this stance, writing: “Fortunately for Mr Malkinson there was a match… but if there had not been there might have been no referral.” He stated that “represents a failure to understand the test to be applied to these cases” on the part of the CCRC, adding that “the absence of a match is not a bar to referral.”

 

CCRC ‘too cautious’ and ‘must aspire to capturing more miscarriages of justice’

 

Mr Henley also criticised the CCRC for not making disclosure failures unearthed by APPEAL “a second freestanding ground of referral” when it finally sent Mr Malkinson’s case to the Court of Appeal in 2023.

 

“It concerns me that if the new DNA evidence had not been obtained and only the disclosure failures… had come to light, the CCRC would not have made the referral. This suggests… that the CCRC is taking too cautious an approach. This needs urgently to change,” Mr Henley wrote.

 

He added: “In this case the Court of Appeal in fact went further than the CCRC, identifying grounds to quash the convictions which the CCRC had failed to identify with the same clarity.”

 

“The CCRC must learn from this. It must aspire to capturing more miscarriages of justice… The question should always be ‘might this be a miscarriage case’ rather than an exercise in thinking of reasons why the Court of Appeal might reject the referral,” Mr Henley wrote.

 

CCRC failed to learn lessons from mishandling of ‘similar’ case

 

Mr Henley’s review also found that Mr Malkinson’s exoneration was delayed because the CCRC failed to learn lessons from its handling of another case that “undoubtedly bore similarities”.

 

In 2013, the Court of Appeal overturned Victor Nealon’s attempted rape conviction, which like Mr Malkinson’s “depended wholly on identification evidence”. The CCRC had twice previously rejected Mr Nealon’s case, and it was left to his lawyers to arrange forensic tests which revealed the presence of another man’s DNA on the victim’s clothing.

 

“In my view Mr Malkinson’s conviction would have been quashed almost 10 years earlier than it was, if the Nealon judgment had been properly understood and followed,” Mr Henley said.

 

CCRC boss personally criticised for failure to apologise sooner

 

Immediately after he was cleared by the Court of Appeal in July 2023, Mr Malkinson launched a petition calling on the CCRC’s Chair Helen Pitcher to apologise to him.

 

Over 160,000 people signed the petition, but Ms Pitcher refused to issue an apology until April 2024. By that point, she had seen Mr Henley’s report, which said: “There should be a wholehearted apology made by the CCRC to Mr Malkinson. The CCRC failed him.”

 

Mr Henley condemned Ms Pitcher for holding off on apologising, stating: “Criticisms of the CCRC’s failure to apologise in 2023 are well-founded.”

 

Mr Henley also criticised public statements made by Ms Pitcher in the wake of Mr Malkinson’s exoneration, finding she “claimed too much credit for the new DNA evidence, and took too little responsibility for the mistakes that were made”.

 

He wrote: “The quashing of Mr Malkinson’s conviction in 2023 should not have been presented as an unqualified success… the CCRC was wrong to appear… to take full credit for the re-testing that had taken place… All the crucial initial tests… had been carried out by APPEAL without the assistance of the CCRC.”

 

Mr Henley added: “Similarly, the work done which resulted in the discovery of undisclosed [evidence] was the result of the efforts of APPEAL. The body charged with investigating potential miscarriages of justice, with statutory powers to obtain relevant material, had failed to discover [it]”.

 

Responding to Mr Henley’s report, Andrew Malkinson said:

“This report lays bare how the CCRC obstructed my fight for justice and cost me an extra decade wrongly imprisoned.

 

“The finding that in 2022 the CCRC was considering rejecting my case for a third time, despite the compelling DNA evidence presented by my legal team, shows that the body is biased through and through. It needs to be torn down and completely rebuilt.

 

“I’m pleased Mr Henley has condemned the CCRC’s Chair for putting off her apology and cynically trying to spin the CCRC’s mishandling of my case as a success. If Helen Pitcher is truly sorry, she’ll step down and let someone serious about fighting miscarriages of justice take charge.

 

“If Helen Pitcher and her leadership team won’t resign after a scathing report like this, they should be sacked.”

 

“The CCRC’s delay in publishing this report and its decision to conceal the names of the personnel whose actions caused me so much suffering is shameful. Both the public and I deserve transparency and accountability, but the CCRC is more concerned with protecting its people from criticism.”

 

Responding to Mr Henley’s report, James Burley, who led APPEAL’s investigation into Andrew Malkinson’s case, said:

“This report is utterly damning. It details a catalogue of failures by the CCRC, from it missing the chance to correct this miscarriage of justice way back in 2009 to its leader last year shamelessly trying to spin her organisation’s disgraceful mishandling of Andy’s case as a success.

 

“Mr Henley’s report makes clear that the CCRC is not investigating and deciding cases properly. No one can doubt now that the CCRC is a broken safety net which sets the bar unreasonably high for innocent prisoners trying to clear their names. The CCRC must be completely overhauled.

 

“The new Justice Secretary should bring in a fresh leadership team at the CCRC that is serious about rooting out wrongful convictions. Mr Henley’s report is personally devastating for CCRC Chair Helen Pitcher, and no right-minded person can have confidence in her leadership.

 

“It says a lot about the CCRC’s commitment to transparency that it has withheld from Andy the names of the CCRC personnel whose decisions cost him so many extra years wrongly imprisoned.”

 

Notes to editors:

1. APPEAL is a charity and law practice that fights miscarriages of justice and demands reform. www.appeal.org.uk
2. Please be aware that this case is subject to reporting restrictions under the Sexual Offences (Amendment) Act 1992 and the Contempt of Court Act 1981.
3. The Criminal Cases Review Commission (CCRC) is a statutory body responsible for reviewing suspected miscarriages of justice. It can refer convictions to the Court of Appeal where it considers there is a “real possibility” it will be overturned. Since its inception, it has rejected over 97% of the applications it has considered.
4. Mr Malkinson is not presently available for interviews in addition to those already scheduled. Requests to interview APPEAL staff can be made by emailing charlotte@appeal.org.uk.
5. Mr Malkinson’s case was featured in aBBC documentary titled The Wrong Man: 17 Years Behind Bars, which was broadcast on BBC Two in June and can still be seen on iPlayer here. Requests to use extracts from the documentary, including Mr Malkinson discussing his experience of the CCRC can be made directly to Clips@bbc.co.uk, or can be lifted directly from this page: https://www.bbc.co.uk/programmes/m001zywl. A clip of Mr Malkinson discussing the CCRC’s mishandling of his case can be found here: https://www.bbc.co.uk/programmes/p0j84xxz.